Sheriff Courts (Scotland) Act 1971

Summary causes S

35 Summary causes. S

(1) The definition of “summary cause” contained in paragraph (i) of section 3 of the M1 Sheriff Courts (Scotland) Act 1907 shall cease to have effect, and for the purposes of the procedure and practice in civil proceedings in the sheriff court there shall be a form of process, to be known as a “summary cause”, which shall be used for the purposes of all civil proceedings brought in that court, being proceedings of one or other of the following descriptions, namely—

(a) actions for payment of money not exceeding [F1 £5000] in amount (exclusive of interest and expenses);

(b) actions of multiplepoinding, actions of furthcoming F2 . . . , where the value of the fundin medio, or the value of the arrested fund or subject, F2 . . . as the case may be, does not exceed [F3 £5000](exclusive of interest and expenses);

(c) actionsad factum praestandum and actions for the recovery of possession of heritable or moveable property, other than actions in which there is claimed in addition, or as an alternative, to a decreead factum praestandumor for such recovery, as the case may be, a decree for payment of money exceeding [F4 £5000] in amount (exclusive of interest and expenses);

(d) proceedings which, according to the law and practice existing immediately before the commencement of this Act, might competently be brought in the sheriff’s small debt court or were required to be conducted and disposed of in the summary manner in which proceedings were conducted and disposed of under the Small Debt Acts;

and any reference in the following provisions of this Act, or in any other enactment (whether passed or made before or after the commencement of this Act) relating to civil procedure in the sheriff court, to a summary cause shall be construed as a reference to a summary cause within the meaning of this subsection.

[F5 (1A) For the avoidance of doubt it is hereby declared that nothing in subsection (1) above shall prevent the Court of Session from making different rules of procedure and practice in relation to different descriptions of summary cause proceedings.]

[F6 (2) There shall be a form of summary cause process, to be known as a “small claim”, which shall be used for the purposes of such descriptions of summary cause proceedings as are prescribed by the Lord Advocate by order.

(3) No enactment or rule of law relating to admissibility or corroboration of evidence before a court of law shall be binding in a small claim.

(4) An order under subsection (2) above shall be by statutory instrument but shall not be made unless a draft of it has been approved by a resolution of each House of Parliament.]

Textual Amendments

F1 Words in s. 35(1)(a) substituted (14.1.2008) by The Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction and Summary Cause) Order 2007 (S.S.I. 2007/507), art. 3 (with art. 4)

F2 Words in s. 35(1)(b) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227, Sch. 6 (with s. 223); S.S.I. 2008/115, art. 3(1)(h)(2)(3), Sch. 2 (with arts. 4-6, 10)

F3 Words in s. 35(1)(b) substituted (14.1.2008) by The Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction and Summary Cause) Order 2007 (S.S.I. 2007/507), art. 3 (with art. 4)

F4 Words in s. 35(1)(c) substituted (14.1.2008) by The Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction and Summary Cause) Order 2007 (S.S.I. 2007/507), art. 3 (with art. 4)

F5 S. 35(1A) inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), s. 59, Sch. 2 para. 14

F6 S. 35(2)–(4) substituted for s. 35(2) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), s. 18(1)

Modifications etc. (not altering text)

C1 S. 35: power to transfer functions conferred (19.5.1999) by S.I. 1999/678, art. 2(1), Sch.

C2 S. 35(1) excluded (22.9.2015) by The Courts Reform (Scotland) Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2015 (S.S.I. 2015/247), arts. 1(1), 9(1) (with art. 9(2))

C3 S. 35(1)(c) excluded by Land Tenure Reform (Scotland) Act 1974 (c. 38), s. 9(6)

Marginal Citations

M1 1907 c. 51.

36 Procedure in summary causes. S

F7 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A summary cause shall be commenced by a summons in, or as nearly as is practicable in, such form as may be prescribed by rules under the said section 32.

(3) The evidence, if any, given in a summary cause shall not be recorded.

F7 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F7 Act (except for ss. 2(3), 3(4)) repealed (S.) (1.4.2015 except for the repeal of ss. 31, 35, 36(2)(3), 36A, 36B, 37, 38, 45, 22.9.2015 for the repeal of ss. 31, 37(1)(b)(2A)(2D), 28.11.2016 for the repeal of ss. 35(2)-(4), 36A, 36B, 37(2B)(2C) and the repeal of specified words in s. 38(b)) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 5 para. 6(2); S.S.I. 2015/77, art. 2(2)(3), sch. (with art. 7); S.S.I. 2015/247, art. 2, sch. (with art. 9); S.S.I. 2016/291, art. 2, sch. (with art. 3(1)(2))

Modifications etc. (not altering text)

C4 S. 36(3) excluded by Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18), s. 4(4)(b)

[F8 36A Further provisions as to small claims. S

Where the pursuer in a small claim is not—

(a) a partnership or a body corporate; or

(b) acting in a representative capacity,

he may require the sheriff clerk to effect service of the summons on his behalf.]

Textual Amendments

F8 Ss. 36A, 36B inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), s. 18(2)

[F9 36B Expenses in small claims. S

(1) No award of expenses shall be made in a small claim in which the value of the claim does not exceed such sum as the Lord Advocate shall prescribe by order.

(2) Any expenses which the sheriff may award in any other small claim shall not exceed such sum as the Lord Advocate shall prescribe by order.

(3) Subsections (1) and (2) above do not apply to a party to a small claim—

(a) who being a defender—

(i) has not stated a defence; or

(ii) having stated a defence, has not proceeded with it; or

(iii) having stated and proceeded with a defence, has not acted in good faith as to its merits; or

(b) on whose part there has been unreasonable conduct in relation to the proceedings or the claim;

nor do they apply in relation to an appeal to the sheriff principal.

(4) An order under this section shall be by statutory instrument but shall not be made unless a draft of it has been approved by a resolution of each House of Parliament.]

Textual Amendments

F9 Ss. 36A, 36B inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), s. 18(2)

Modifications etc. (not altering text)

C5 s. 36B: power to transfer functions conferred (19.5.1999) by S.I. 1999/678, art. 2(1), Sch.

37 Remits. S

(1) In the case of any ordinary cause brought in the sheriff court the sheriff [F10 —

(a)] shall at any stage, on the joint motion of the parties to the cause, direct that the cause be treated as a summary cause, and in that case the cause shall be treated for all purposes (including appeal) as a summary cause and shall proceed accordingly

F7 (b) . . . . . .

(2) In the case of any summary cause, the sheriff at any stage—

(a) shall, on the joint motion of the parties to the cause, and

(b) may, on the motion of any of the parties to the cause, if he is of the opinion that the importance or difficulty of the cause makes it appropriate to do so,

direct that the cause be treated as an ordinary cause, and in that case the cause shall be treated for all purposes (including appeal) as an ordinary cause and shall proceed accordingly:

Provided that a direction under this subsection may, in the case of an action for the recovery of possession of heritable or moveable property, be given by the sheriff of his own accord.

F7 (2A) . . . . . . . . . . . . .

[F11 (2B) In the case of any small claim the sheriff at any stage—

(a) may, if he is of the opinion that a difficult question of law or a question of fact of exceptional complexity is involved, of his own accord or on the motion of any party to the small claim;

(b) shall, on the joint motion of the parties to the small claim,

direct that the small claim be treated as a summary cause (not being a small claim) or ordinary cause, and in that case the small claim shall be treated for all purposes (including appeal) as a summary cause (not being a small claim) or ordinary cause as the case may be.

(2C) In the case of any cause which is not a small claim by reason only of any monetary limit applicable to a small claim or to summary causes, the sheriff at any stage shall, on the joint motion of the parties to the cause, direct that the cause be treated as a small claim and in that case the cause shall be treated for all purposes (including appeal) as a small claim and shall proceed accordingly.]

F7 (2D) . . . . . . . . . . . .

[F12 (3) A decision—

(a) to remit, or not to remit, under subsection (2A) [F13 (2B) or (2C)] above; or

(b) to make, or not to make, a direction by virtue of paragraph ( b ) of, or the proviso to, subsection (2) above,

shall not be subject to review; but from a decision to remit, or not to remit, under subsection (1)( b ) above an appeal shall lie to the Court of Session.]

(4) In this section “sheriff” includes a sheriff principal.

Textual Amendments

F7 Act (except for ss. 2(3), 3(4)) repealed (S.) (1.4.2015 except for the repeal of ss. 31, 35, 36(2)(3), 36A, 36B, 37, 38, 45, 22.9.2015 for the repeal of ss. 31, 37(1)(b)(2A)(2D), 28.11.2016 for the repeal of ss. 35(2)-(4), 36A, 36B, 37(2B)(2C) and the repeal of specified words in s. 38(b)) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), sch. 5 para. 6(2); S.S.I. 2015/77, art. 2(2)(3), sch. (with art. 7); S.S.I. 2015/247, art. 2, sch. (with art. 9); S.S.I. 2016/291, art. 2, sch. (with art. 3(1)(2))

F10 “—(a)” inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55, SIF 36:3), s. 16(a)(i)(ii)

F11 S. 37(2B)(2C) inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), s. 18(3)(a)

F12 S. 37(3) substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55, SIF 36:3), s. 16(c)

F13 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), s. 18(3)(b)

38 Appeal in summary causes. S

In the case of [F14 —

(a) any summary cause an appeal shall lie to the sheriff principal on any point of law from the final judgment of the sheriff; and

(b) any summary cause other than a small claim an appeal shall lie] to the Court of Session on any point of law from the final judgment of the sheriff principal, if the sheriff principal certifies the cause as suitable for such an appeal,

but save as aforesaid an interlocutor of the sheriff or the sheriff principal in any such cause shall not be subject to review.

Textual Amendments

F14 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), s. 18(4)

Modifications etc. (not altering text)

C6 S. 38 excluded by Debtors (Scotland) Act 1987 (c. 18, SIF 45:2), ss. 103(1), 108(2), Sch. 7 paras. 5, 9(1)